Correcting ‘Misunderstanding’ of Visa Rules

By Benjamin Wagner

In a March 6 Korea Times column (``Misunderstanding About Visa Rules''), Lee Bok-nam, a Ministry of Justice official, responded to an earlier contribution of mine (``Testing Teachers for Drugs and AIDS") and presented several persistent misunderstandings of visa rules. I would like to offer my assistance in correcting Lee's continued misunderstanding of my position and the E-2 visa requirements themselves.

Lee's piece gets off to a shaky start by failing to refer the article he is critiquing. ``Wagner claims that the policy of requiring foreign language instructor (E-2) visa applicants of documents of criminal . . . records is injustice,'' he writes. In fact, I wrote that criminal backgrounds checks for all those who work with children was ``reasonable and justified.'' No one is arguing that foreign teachers shouldn't be held to the same standards as Korean teachers. The title of the article, I had hoped at least, made my point pretty clear: The issue is with testing foreign teachers for drugs and AIDS, not criminal checks.

Surprisingly for an official working in the justice ministry, Lee dismisses my claim that non-citizens residing in Korea have rights afforded them under the Constitution of the Republic of Korea. He wrongly thinks I posit Korean constitutional rights for non-citizens residing in foreign lands around the world. ``No country in the world,'' he says, ``recognizes free entry of foreigners as the constitutional basic rights.'' I agree. Constitutional rights are only afforded to those within the territory where the constitution governs.

When the ROK explains to the Committee on the Elimination of Racial Discrimination every two years that - ``The principle of the respect for human rights and the principle of equality of individuals before the law, as enshrined in the Constitution, also apply to foreigners.'' - it doesn't mean foreigners all over the globe. It means just what it says in the sentence that follows: ``Foreigners residing in the Republic of Korea are guaranteed fundamental human rights.'' (See Korea's Fourteenth Periodic Report to the UN Committee on the Elimination of Racial Discrimination, Aug. 18, 2006).

I didn't realize that needed to be spelled out, but I am happy to clarify this misunderstanding for the justice ministry. Hopefully, the fact that foreigners residing in Korea are indeed ``guaranteed fundamental human rights'' under the Constitution will figure into the ministry's future immigration policy revisions, because the unconstitutional and discriminatory imposition of compulsory in-country HIV and drug-testing requirements certainly did not.

In 2007, when the E-2 visa ``policy memo'' (without the status of law) required over 17,000 E-2 visa holders already residing in the ROK to report to national hospitals for HIV and drug tests, this was not ``entry requirements.'' These foreigners had long since entered the country and had taken up residence. The Constitution of this nation most certainly afforded them protection. Article 37(2), which Lee is so quick to brush aside, demands that a legitimate and non-discriminatory law (not a "policy memo") be enacted before the rights and freedoms of individuals can be restricted.

But this is well understood, if not by Lee and the Border Control Division, then at least by the 18 National Assemblypersons who introduced Bill No. 3356 on Dec. 30, 2008.

The bill reads: "Nowadays, the number of foreigners working in Korea is increasing, but a good many have previous convictions for drug and sexual crimes or carry infectious diseases. As we require measures to deal with the threat they pose to our society's public order and our people's health, we herein prepare the legal basis to require that foreigners applying for an employment visa submit a criminal background check and a health certificate.''

While we may deplore the assertion that ``a good many'' foreigners are diseased ex-cons, we may at least respect these Assemblypersons' concern with finding a ``legal basis'' for their goals. But if the goals of the ROK are truly to protect ``people's health'' and maintain ``public order,'' then the current policy of discriminatory HIV and drug testing for foreigners must be abandoned. Korean leaders at the national and international level have repeatedly acknowledged that attempting to control the spread of HIV by testing and deporting foreigners is counterproductive and can actually increase the threat to public health.

Government policies that uphold the stigma for people living with HIV/AIDS create disincentives for voluntary testing, promotes the false idea that only foreigners are at risk for HIV/AIDS, and ignores the needs of the 13,000 Korean citizens estimated to be infected. It is government policies such as these - and not foreigners - that threaten ``people's health.''

As for the maintenance of ``public order,'' it must always be recalled that respect for the Korean constitutional principles of human rights, non-discrimination, and the rule of law is central to securing public order. Government policies that disregard these essential principles truly threaten public order by eroding the constitutional foundation on which this society is based. The implementation of compulsory drug testing, without even bothering to enact a law and without concern for the fact that foreign teachers are tested for drugs for which there had been no prior arrests, constitutes just such a dangerous government policy.

In the coming weeks, as Bill 3356 and others that seek to amend the Immigration Act move toward a vote at the National Assembly, Koreans and all of us living here can expect to see an increased debate on the alleged threat foreigners pose to this society.

As this debate unfolds, I hope that enlightened minds prevail and the sentiments of individuals like Irene Khan, secretary-general of Amnesty International, are given due consideration: ``when we feel threatened - whether about our physical well-being or our social identity - that is precisely when we must make sure that the outsider among us, the foreigner, does not suffer. It is all too easy to feed people's fear that the threat comes from abroad, to create a climate of suspicion, mistrust, xenophobia and racism.''

Benjamin Wagner is a professor of law at Kyunghee University Law School, a Center for International Human Rights research fellow, and a U.S. attorney (Hawaii State Bar). He can be reached at khu.lawschool@gmail.com